Personnel Board Frequently Asked Questions (FAQs)

• You may choose someone to represent you in challenging disciplinary action, including your union representative (SEIU, Local 521, CEMA, 1587, etc.) or an attorney.  You are responsible for retaining that representative. If you have a representative, please consult with your representative for advice.
• If you have chosen to represent yourself, you may find a copy of the Personnel Board Rules of Procedure. If you have questions about when your appeal is scheduled for hearing before the Personnel Board or scheduling your appeal you may contact the Board Secretary at [email protected]. However, the Board Secretary cannot provide you legal advice about your appeal.
• Please fill out the linked case management statement form in advance of a pre-hearing conference. The parties (appellant/representative and the County) are expected to complete separately or jointly and submit to the Clerk of the Board for the Personnel Board within 90 days of an appeal to the Personnel Board.

• This is a document issued to an employee by management based on employee performance or behavior that management believes violate County or Department policies and procedures, professional standards, or legal requirements. 
• If you have received a Notice of Recommended Disciplinary Action for suspension, demotion, or termination, you have the right to a pre-disciplinary Skelly hearing in front of a Skelly Hearing Officer. You may provide an oral and/or written response to the recommended discipline on or before the date of the Skelly hearing. 
• The Notice of Recommended Disciplinary Action recommends discipline. The final discipline is issued by the Skelly Officer after the Skelly hearing.

• An employee has the right to (1) notice of the intended disciplinary action; (2) a copy of all materials upon which the disciplinary action is based; and, (3) an opportunity to respond orally or in writing prior to the effective date of the disciplinary action.
• A Skelly is a hearing that provides an employee the opportunity to respond to recommended discipline before a hearing officer before the discipline is imposed. Generally, Skelly Hearings must be provided in the case of an adverse action involving termination, demotion, or suspension.
• A Skelly Hearing is different than a hearing before the Personnel Board. The Skelly Hearing allows the employee to respond to recommended discipline before a final discipline is determined. If the employee disagrees with and wishes to challenge the final discipline after the Skelly Hearing, they may appeal the Final Disciplinary Action before the Personnel Board. 

• If the Recommended Disciplinary Action provides instructions for scheduling a specific date and time to appear before the Skelly hearing officer, the employee must follow those instructions within the stated timeline.
• If the Recommended Disciplinary Action provides a specific date, time and location for the Skelly hearing, the employee must appear as directed; or, contact the Skelly hearing office if there is a conflict.
• If the employee opts to respond in writing, the employee may either submit their written response at the Skelly hearing or before the date of the skelly hearing.

John F. Skelly, MD, was a physician in the State Department of Health Care Services who appealed his termination to the California State Supreme Court in 1972. The California State Supreme Court identified the pre-disciplinary procedural due process requirements and held that substantive due process guides the selection of a level of penalty that is fair and proportionate to the misconduct. Ultimately, this “Skelly” right now applies to all California public sector employees when they may lose property rights (i.e., wages).

Attending a Skelly Hearing is optional. If the employee does not submit any formal response or attend the Skelly Hearing, the Skelly Officer will complete a review of the materials as provided in the Recommended Disciplinary Action without a response from the employee.

This is the final level of discipline that will be imposed. It is determined by the Skelly Officer after the Skelly Hearing. The level of discipline recommended in the Recommended Disciplinary Action may be sustained, reduced, or revoked.

Employees can challenge the Final Disciplinary Action.  To do so, they must request an evidentiary hearing before the Personnel Board by filing a request to the Personnel Board for a hearing within 10 working days of receipt of Final Disciplinary Action notice.

• A request for a public hearing before the Personnel Board must be submitted within 10 working days of receipt of the Final Disciplinary Action notice.  The employee must send a written appeal to the Personnel Board, care of the Clerk of the Board.  If there are instructions for submitting an appeal stated in your Recommended Disciplinary Action (RDA) or Final Disciplinary Action (FDA), then you should follow those instructions.  If there are no instructions in your RDA or FDA, then you can submit an appeal by sending a written letter to the following address within 10 working days of receipt of the Final Disciplinary Action notice:
  
  Personnel Board - Clerk of the Board of Supervisors
  70 W. Hedding Street
  East Wing, 10th Floor 
  San Jose, CA 95110
   
• At the time of appeal, you must provide your contact information and the contact information of your representative, if you have one, to the Clerk of the Board. If your contact information changes, it is your responsibility to notify the Clerk of the Board and all parties of the updated contact information. As part of your contact information, please provide a reliable mailing address, your current email address, and your phone number. 

Yes. Within 90 days of filing your appeal, you must complete and submit the Personnel Board Case Management Statement, located here. The parties may submit the Case Management Statement jointly or separately. Whenever possible, a joint statement is preferred. If you are represented by a union, consult with your union representative before submitting your Personnel Board Case Management Statement.

The Personnel Board schedules appeals based upon Board availability and the number of appeals already on file. On average, it takes between 6-18 months to schedule a hearing.

• The Personnel Board discusses the scheduling of hearings at its monthly business meetings. The agenda for each monthly business meeting is published one week in advance of the meeting. You can find the business meeting schedule and the Personnel Board business meeting agendas at the Board of Supervisors & Boards and Commissions Meeting Calendar, located here, and filtering for the Personnel Board under the “Group” dropdown menu. If you are represented by a union, consult with your union representative. 
• Please note that the Personnel Board prioritizes the scheduling of the five oldest cases based on date of appeal. The Personnel Board expects the parties with pending appeals to review the monthly agendas to stay informed about whether their case is on the five oldest cases list or is otherwise to be discussed.  You and/or your representative should be present at the business meeting if your case is listed on the monthly agenda.  However, even if your case is not on the business meeting agenda for discussion, you can still appear at the regular business meeting to discuss scheduling during the portion of the business meeting agenda dedicated to discussing pending hearing schedule/appeal backlog.
• A party who is seeking to schedule an appeal hearing must meet and confer with the opposing party to determine agreeable dates, which should be presented at the Personnel Board’s regular business meeting. The Personnel Board strongly recommends that the parties consult the Personnel Board Meeting Schedule, located in the last business meeting agenda packet, available by searching the Board of Supervisors & Boards and Commission Meeting Calendar, available here, and filtering by the Personnel Board under the “Group” dropdown menu. 
• The Personnel Board typically schedules appeal hearings on Fridays. Additional dates may be available in special circumstances.

• The Clerk of the Board will provide you, or your representative if you have one, with notice of your hearing date at the address that you provided to the Clerk of the Board when you filed your appeal. 
• You may also check the Personnel Board Meeting Schedule, located here, and filtering for the Personnel Board under the “Group” dropdown menu.

• No. The Board requests that all documents such as exhibits or other submissions be brought to the appeal hearing. Please ensure that you bring enough copies for all Board members, the opposing party, the court reporter, and a witness copy (a minimum of eight copies). Please consult with the opposing party regarding exhibits that can be submitted jointly.  
• If you believe that you need a subpoena to compel the attendance of a witness, you should present such a request pursuant to Personnel Board Rules of Procedure 10.5.3 to the Chairperson of the Board as soon as possible. Routine subpoena requests received less than 30 days prior to the hearing date discouraged. 
• Emergency requests for subpoenas can be submitted to the Chairperson through the Clerk of the Board at the following email address: [email protected].  The opposing party must be copied on any such request. Emergency requests will only be granted for cause. 

• You should bring any relevant evidence that supports your position on appeal. Evidence may include records, documents, physical evidence, or witnesses who will testify at the hearing. 
• For documentary or record evidence that can be copied, you should ensure that you bring enough copies for each Board member, the opposing party, the court reporter, and a witness copy (a minimum of eight copies). 
• You are responsible for ensuring that your witnesses appear at the hearing.

• It depends.  Personnel Board appeals are open to the public, with exceptions noted below. For public hearings, Proposed and Final Findings of Fact are made available to the public and are typically posted online. These findings include a description of the reasons for the discipline and the Personnel Board’s decision.
• Exceptions:  appeals by employees subject to Public Safety Officers Procedural Bill of Rights Act (POBAR) and items agendized for Closed Session discussion and deliberation are closed to the public. For closed hearings, Proposed and Final Findings of Fact are confidential and will not be posted online. 

• Pursuant to the Personnel Board rules, and absent a showing of good cause, if you file an appeal to the Personnel Board and do not cooperate to schedule a hearing date, or schedule a hearing date and do not attend the scheduled hearing, the Board may proceed to enter default judgment against you.
• If you decide that you do not want to proceed with your Personnel Board appeal, you may withdraw your appeal by filing a written statement with the Clerk of the Board by mail or email.

• The Board may sustain or reject the discipline imposed, or it may independently determine the appropriate amount of discipline consistent with the Charter not to exceed the amount initially imposed by the department. 
• Please note that for Executive management employees, decisions shall be advisory to the County Executive who shall review them and make the final decision. 

• After the hearing, the Personnel Board adopts Findings of Fact, which describe the Board’s decision on the challenge to the discipline and the evidence supporting it. The Findings of Fact are made available to the public as allowed by law and are posted online (except for appeals subject to POBAR).
• Typically, the prevailing party prepares and submits proposed Findings of Fact. The losing party gets the opportunity to review the draft and may provide proposed concerns about those findings or its own alternative findings. The Board then reviews the proposed Findings of Fact and decides what to adopt and whether to make any changes to the proposed Findings of Fact before adopting them.
• The findings, conclusions, and decisions of the Personnel Board can generally only be challenged by seeking judicial review by filing a petition for writ of mandate per California Code of Civil Procedure section 1094.5. The writ petition must be filed no later than the 90th day following the date on which the Board decision becomes final. The Board decision becomes final when the findings are mailed by first-class mail, postage prepaid, including a copy of a certificate of mailing to the party seeking any such writ.
• For Executive management employees, the Personnel Board’s findings, conclusions, and decisions are advisory to the County Executive, who reviews them and makes the final decision.

The County and the Appellant may enter into a voluntary settlement agreement to resolve the final discipline and appeal. If you are represented by a union, please consult with your union representative.

The employee should consult with their applicable union representative or other competent advocate. View the Personnel Board Rules of Procedure.

The employee should consult the applicable collective bargaining agreement that covers their job classification. View the Personnel Board Rules of Procedure.